Citation Nr: 21003582 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-02 413 DATE: January 22, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder, is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In March 2011, bilateral hearing loss was manifested by Level I hearing loss bilaterally. 2. In May 2016, bilateral hearing loss was manifested by Level VI hearing loss in the right ear and Level I hearing loss in the left ear. 3. In February 2020, bilateral hearing loss was manifested by Level II hearing loss bilaterally. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, Tables VI, VIa, VII; 4.86; Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1993 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision by the Agency of Original Jurisdiction (AOJ), that denied service connection for depressive and anxiety disorder, and awarded service connection for bilateral hearing loss with a noncompensable evaluation. A Board hearing was held in May 2019. A transcript is of record. The appeal was remanded for development of the record in September 2019. In June 2020, the Veteran’s attorney submitted a claim of entitlement to TDIU, based in part on the Veteran’s service-connected hearing loss. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation. Thus, under Rice, the Board has jurisdiction over the TDIU claim. Evaluation of bilateral hearing loss The Veteran seeks a compensable evaluation for his bilateral hearing loss. He asserts that this disability is more disabling than is reflected by the current evaluation. VA treatment records indicate that the Veteran has been issued hearing aids. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The evidence demonstrates that in March 2011 and February 2020, the Veteran did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz. However, in May 2016, he did have puretone thresholds at 55 decibels in each of the specified frequencies on the right. As such, § 4.86 applies to this examination regarding the puretone thresholds recorded for the Veteran’s right ear. On VA examination in March 2011, the following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Average RIGHT 40 35 45 45 41 LEFT 45 40 50 50 46 Speech recognition scores were 94 percent bilaterally. On VA examination in May 2016, audiologic testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 70 70 70 75 71 LEFT 55 45 60 60 55 Speech recognition scores were 96 percent bilaterally. The record contains an October 2016 report by a private audiologist; however, she did not report the puretone thresholds observed on audiological testing. On VA examination in February 2020, the following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Average RIGHT 55 55 70 65 61 LEFT 55 55 70 65 61 Speech recognition scores were 96 percent on the right and 100 percent on the left. The Board observes that application of the regulation to the findings of the March 2011 VA examination results in a numeric designation of I for each ear. A noncompensable evaluation is warranted when those values are applied to Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100. Application of the regulation to the findings of the May 2016 VA examination result in a numeric designation of VI for the right ear under Table VIa and a numeric designation of I for the left ear under Table VI. A noncompensable evaluation is warranted when those values are applied to Table VII. Id. Application of the regulation to the findings of the February 2020 VA examination results in numeric designation of II for each ear. A noncompensable evaluation is warranted when those values are applied to Table VII. Id. Considering the above, the Board concludes that the currently assigned noncompensable evaluation is correct for the entire period of the appeal. The Board does not doubt the sincerity of the Veteran’s assertions regarding the severity of his hearing loss, or its functional impact. However, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for the various levels of compensation. The more probative evidence consists of that prepared by skilled audiologists, and such evidence demonstrates that the currently assigned evaluation for the Veteran’s hearing loss disability is appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. REASONS FOR REMAND Service connection for an acquired psychiatric disorder In the September 2019 remand, the Board observed that the record contained diagnoses of major depressive disorder and anxiety disorder. It noted that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim included any mental disorder that might reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. The Board directed that an examination be conducted to determine the etiology of the Veteran’s claimed acquired psychiatric disorder. It specified that the Veteran’s representative had argued that the Veteran’s psychiatric disorder was related to his other service-connected disabilities, including tinnitus and chronic pain from his left foot disability. It indicated that the examiner should address this theory of entitlement. On examination in January 2020, the examiner provided diagnoses of other specified anxiety disorder and unspecified depressive disorder. The examiner did not give an opinion regarding whether these psychiatric disorders were caused or aggravated by the Veteran’s service-connected disabilities. A remand by the Board confers on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the VA examiner did not provide an opinion regarding the Veteran’s secondary theory of entitlement, remand is necessary to address this question. TDIU Further development and adjudication of the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder may provide evidence in support of the claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his claimed acquired psychiatric disorder. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Following review of the record and examination of the Veteran, the examiner should indicate all appropriate psychiatric diagnoses. The examiner should provide an opinion with respect to whether it is at least as likely as not that any such diagnosis is related to any incident of service. The examiner should also provide an opinion with respect to whether it is at least as likely as not that any such diagnosed acquired psychiatric disorder was caused or aggravated by the Veteran’s service-connected left foot disability (to include resulting chronic pain), hearing loss, or tinnitus. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   2. Then, readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.